Category Archives: Temporary Work Visas

Getting approval of any type of visa for temporary work in the U.S. involves providing stacks of paperwork to U.S. Citizenship and Immigration Services (USCIS), with the goal of proving that the applicant meets a strict set of legal criteria. That’s part of why people hire immigration attorneys — not only to interpret the law, but to help assemble, file, and keep track of all the documents in a client’s case.

So when even the attorneys are complaining that USCIS is raising the bar on the type and amount of documents required, and ultimately reducing the numbers of approvals, you know there’s a problem. That’s precisely what’s happening in the case of O-1 visas for outstanding workers in the sciences, arts, athletics, education, or business.

According to to an October 17, 2014 report by Matthew Blake of the San Francisco Daily Journal, immigration lawyers are concerned that, “over the past year, [USCIS] has made it more difficult for their clients to get work visas, speculating that the agency is accepting more petitions for scientists at the expense of entertainers, or more cautiously following visa rules with national immigration policy in flux.” Applicants are being asked to provide “detailed, multi=year work itineraries,” and “more evidence that they are extraordinary.”

Some lawyers met with USCIS over this issue, but were disappointed at the answers (or lack thereof.) The lawyers have since requested a “summit” with federal immigration officials.

Perhaps these lawyers’ actions will bring about a resolution such that prospective O-1s can get on with their lives and visa applications. But if you are a potential O-1 seeker — especially an athlete — you’d do well to consult an attorney with lots of recent experience in this subspecialty of immigration law.

If I blog about Justin Bieber for the third time in a row, does that make me a “Belieber?” (Nah, I still can’t hum a thing he’s recorded, sorry.)

But he’s become the world’s best object lesson regarding U.S. immigration law and policy.

In his latest kerfuffle, reported on by CNN, U.S. Customs and Border Protection (CBP) officials searched his private plane, interviewed him for “several hours,” and brought in the trusty drug-sniffing dogs before letting him back into the U.S. from his recent trip to Canada.

(CBP are the same folks who meet you at the airport or border, examine your passport or other entry documents, and ask whether you’re bringing in any drugs, snakes, explosives, and so on before they hopefully wave you in).

Their reason for spending so many time on Bieber? To get autographs for their kids, of course! Oh, no, the officials say that they’d “detected an odor of marijuana after [the plane] landed in New Jersey.”

Uh oh, the dreaded weed. Maybe they’re getting into the spirit of the “let’s deport Justin” movement, because had drugs been found, that plus his earlier admission of having been smoking marijuana might very well be enough to have him removed from the U.S. as a drug abuser. (See my earlier blog, “Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?“)

But either their sniffers were overactive that day or the Bieber entourage does a really, really good job of hiding its dope, because nothing was found. Justin was allowed into the U.S., with nary a stain on his record. That means he doesn’t get to join my list of “International Celebrities Denied U.S. Entry Visas.” (Then again, by the pilot’s description, they may have simply smoked it all.)

In yesterday’s blog, I took a look at whether Justin Bieber could realistically face deportation (removal) for various types of trouble he’s gotten into while living in the United States on an O-1 visa.

But today’s headlines raise another question: If he’s convicted for assaulting a limo driver in Canada (as he’s been recently charged with by Toronto police), could that foreign conviction lead him to be deported from the United States?

The first issue here is whether a foreign conviction can be held against someone in the U.S. and make them deportable. No one should be surprised to hear that the answer is, “Yes.” However, to protect people against being deported for something that’s not even illegal in the U.S. (for example, depositing your chewing gum on the sidewalk, which I once read is illegal in Singapore, though you shouldn’t quote me on that), the foreign conviction has to parallel a crime on the books in the United States.

Of course, assault is illegal here. Bieber is said to have been one of six passengers picked up by a limo driver on December 30 of last year, who got into an altercation that led to the limo driver being hit on the head several times. (The driver’s okay, but will probably never allow his children to see Bieber in concert.) So finding a parallel U.S. statute will not likely be an obstacle, were U.S. immigration officials inclined to try to deport the Biebs.

The bigger issue is whether assault can be the basis for deportation of someone legally within the United States. To constitute a “crime of moral turpitude” (one of the main criminal grounds for deportability, depending on length of sentence and number of offenses), it would likely have to be an “aggravated assault.” Given that the driver in this case was able to stop the limo, get out, and call the police, I’m going to hazard a guess that this won’t be seen as rising to the level of “aggravated.”

But the analysis isn’t over yet: The next question is whether the assault is an “aggravated felony,” which is also a basis for deportation. Bieber’s lawyer says it’s likely to be treated as the equivalent of a misdemeanor in Canada — which doesn’t tell us much, because owing to the vagaries of U.S. immigration law, misdemeanors can be treated as felonies! Crimes of violence with a sentence of it least one year are considered aggravated felonies. Given the low level of injuries in this case, I doubt Bieber will get a year-long sentence — if he’s even convicted in the first place. (Let’s not forget, these are all allegations at this point, plus a lot of media hype.)

So, to the more than 200,000 petition signers who say that “We would like to see the dangerous, reckless, destructive, and drug abusing, Justin Bieber deported,” don’t hold your collective breath. Solid legal grounds upon which to do seem not to have actually arisen yet. (And BTW, the headline on your petition is inaccurate: He doesn’t have a green card. It’s a temporary work visa.)

The CNN articles also discuss what these accusations might mean for Bieber’s immigration status. He’s apparently in the U.S. on an O visa, for people with “extraordinary ability in the sciences, arts, education, business, or athletics.”

People who are legally in the U.S., like Bieber, can be deported for committing a crime that’s listed on the grounds of deportability within U.S. immigration law. (Juvenile crimes are sometimes an exception, but contrary to appearances, the Biebs is already 19.)

Nothing Bieber is alleged to have done so far seems to make experienced immigration attorneys think he fits either of the main two criminal grounds of deportability, namely a “crime of moral turpitude” (one that shocks the public conscience) or an “aggravated felony (which doesn’t have to have “felony” in the name, but can include various types of misdemeanors).

Bieber could, however, face removal proceedings if he has drug issues. The immigration law contains two separate grounds of deportability for drug use: one that makes people deportable if they’ve been convicted of a drug crime (or an attempt), with an exception for a single offense involving possession for personal use of 30 grams or less of marijuana; and another for being a drug abuser or addict.

Notice that no actual court conviction is needed to be deportable under the drug abuse/addict section. The person’s own confession to drug use could be enough. Bieber appears to have already told the police who pulled him over in a traffic stop that he’d been drinking, using marijuana, and taking prescription pills. (Oops. It’s never a good idea to drink so much that you get into a confessional mood like that.)

Of course, one could face worse fates than being deported to Canada. But, depending how all this plays out, Bieber could face a bar on returning to the U.S. for a long time after deportation — long enough to lose those baby cheeks.

P.S. Should we be shocked or impressed that he poses for a mugshot like it’s just another publicity still?

Every year, U.S. Citizenship and Immigration Services (USCIS) opens up the filing period during which employers can submit petitions for new H-1B workers . . . and every year, the window of opportunity closes very soon after. This year, USCIS will begin accepting petitions for workers who are subject to the fiscal year (FY) 2014 cap on Monday, April 1, 2013.

The reason this timing is so important is that only 65,000 new H-1B visas (or status changes) can be given out per year, unless the worker falls into an exempt category. And of those 65,000, up to 6,800 are set aside for H-1B applicants under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

The most important exemption from this cap applies to the first 20,000 H-1B petitions filed for workers who have U.S. master’s degree or higher. Other widely used exemptions are available to H-1B applicants who will work at either institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.

Even with the exemptions, there is stiff competition for those 65,000 spots — more demand than supply. In fact, USCIS expects to receive more than 65,000 petitions within less than a week, by April 5, 2013. The agency will notify the public as soon as it has received 65,000 petitions subject to the cap, and reject petitions submitted afterward. For any petitions that come in over the 65,000 but before USCIS’s announcement cutting off filings, USCIS plans to use a lottery system to select which ones will be processed.

USCIS is also making a temporary change to its premium processing service. Petitioners may still request premium processing, but they won’t receive a USCIS decision within the normal 15-day period. Instead, USCIS will begin counting the 15-day promised speedy processing period starting on April 15.

One of the most important topics to consider if you are hoping to petition for or get a job as an H-1B worker is whether the cap will be an issue, or whether some exemption or alternative is available. For details on this, see Nolo’s article, “When the H-1Bs Run Out: Alternative Visas and Strategies.”

If your business’s gross annual income is less than $10 million, your workforce numbers fewer than 25, and your business has been in operation for fewer than ten years, guess what: You match the “fraud indicators” outlined by U.S. Citizenship and Immigration Services in a recently released document, putting any petitions that your business files to hire H-1B specialty temporary workers under suspicion. They’ve even got a catchy name for it: the “10/25/10″ formula.

Supposedly this formula was developed after analysis of where the largest volume of fraudulent applications was coming from. Small comfort if you’re a small business owner or manager trying to hire someone from another country! The situation isn’t hopeless, but you can expect lots of requests for documents, and quite possibly a site visit.

Despite a slow economy, the demand for new H-1B visas for specialty workers (such as scientists, engineers and computer programmers) is higher than ever. As usual, it is higher than the number of visas Congress has allotted per year in this category (65,000).

According to an announcement from U.S. Citizenship and Immigration Services (USCIS), the 65,000 cap was reached on June 11, 2012. That’s even earlier than the date upon which H-1B visas ran out last year.

Any new H-1B specialty occupation petitions physically received by USCIS after that date, and requesting an employment start date in FY 2013, will be rejected. What is FY 2013? It starts on October 1 2012, and runs through September 30 2013.

This announcement does not mean, however, that everyone who seeks an H-1B visa is out of luck.

Some people may be exempt from the cap under an “advanced degree” or other exemption. Others may be renewing their current H-1B status or changing employers. USCIS will continue to accept and process such petitions.

As I mentioned in an earlier entry (called “Great News for F-1 and H-1B Visa Holders,”) DHS has announced plans to allow H-4 spouses to work in the U.S., during the time that the H-1B visa holder is awaiting action on an adjustment of status (green card) application, and after a “minimum time spent in the U.S.”.

Thanks to Gary Endelman and Cyrus Mehta, we have a bit more information about that “minimum time.” Their column, “Working: H-4 Spouses Get to Take a Step Forward, But Is It a Giant One?” reveals that the government is requiring that H-1B holders have already received an extension of their stay in order for the spouse to qualify for a work permit (EAD) — in practical terms, that the H-1B holder have already been in the United States for six years.

As happens so often, we can describe the immigration rules, but we can’t explain the logic behind them. As Endelman and Mehta point out, nothing in the underlying immigration laws actually prohibits H-4 spouses from working in the first place. This is all a matter of agency “interpretation” (though I’d prefer the word “overthinking”).

A January 31 press release from Homeland Security (DHS) contains some positive changes for students and H-1B workers — all with the headlined goal of attracting and retaining highly skilled immigrants.

With the caveat that nothing is final until the immigration folks work out regulations and policies (which can take months), here is what we have to look forward to:

Eligibility for a 17-month extension of optional practical training (OPT) for F-1 international students with a prior degree in Science, Technology, Engineering and Mathematics (STEM). At the moment, F-1 students are limited to 12 months of OPT. DHS also plans to continually review emerging fields for possible inclusion in the list of eligible STEM degree programs.

Allow spouses of F-1 students to enroll in part-time study academic classes (currently, they are limited to taking recreational or vocational courses).

Allow spouses of H-1B holders (H-4 visa holders) who are waiting for USCIS action on an adjustment of status (green card) application to apply for work authorization after meeting a minimum period of H-1B status in the U.S.

Broaden the scope of types of evidence that outstanding professors and researchers can present in order to prove their academic achievement in support of their employment-based immigrant visa applications.

Treat E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile the same as related work visa holders by allowing them to continue working with their current employer for up to 240 days while their petitions for extension of status are pending, assuming these petitions were filed in a timely manner.

Launch an initiative called “Entrepreneurs in Residence” at the end of February 2012, which will bring together high-level representatives from the entrepreneurial community, academia, and various federal government agencies to discuss how to maximize current immigration laws’ potential to attract foreign entrepreneurial talent.

I’ve seen an unusual amount of media awareness lately of how people coming to the U.S. on temporary or permanent work visas can provide both a cultural and an economic boost to this country — and how (no one should be surprised here) tough those visas can be to get.

First, in the program/magazine for “The Wild Bride,” a hot-selling show at Berkeley Rep Theatre, there was a surprisingly long discussion of what it took, visa-wise, to bring the Kneehigh Theatre group “direct from England.”

The theatre’s general manager, Karen Racanelli, “worked several late nights, poring over substantial piles of federal paperwork.” (And that was with a lawyer’s help!)

The article goes on to describe how they applied for a P-1 visa for the on-stage ensemble, meant for internationally recognized entertainers; and a P-1S visa for their directors, designers, and assistants. Any or all of those visas could have been denied if U.S. Citizenship and Immigration Services (USCIS) hadn’t been convinced that the ensemble had received a truly international level of recognition, or that a particular individual was inadmissible. (Even performers of tabloid-level fame aren’t immune from being found inadmissible — see, for example, my article on “International Celebrities Denied U.S. Entry Visas.”)

Look how hard the USCIS regulations make it to qualify for this visa, by saying that the entertainment group must have been: “recognized internationally as being outstanding in the discipline for a sustained and substantial period of time,” and that each person applying for the visa must have “had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provide[] functions integral to the performance of the group.” Gulp. Even if it’s true, what a bother to prove. (By the way, the regs are at 8 C.F.R. Section 214(p).)

Lucky for us viewers, everyone got their visas — and a good thing, because as Karen also noted, “They need their whole team together to do what they do.”

That wasn’t all for recent media mentions of visas. Angela Woodall of the Oakland Tribune recently ran an article called, “Oakland Eyes Pay-to-Play Visa Program for Ballpark, New Coliseum.” The EB-5 visa is on center stage this time, offering, as it does, an opportunity for international investors to gain a green card through a U.S. business investment of at least $1 million (or $500,000 in an economically troubled area).

Given Oakland’s need for capital, city leaders are actively looking for foreign investment for some of its big projects.

Getting an EB-5 green card is not as easy as laying down the cash, however. As the article notes, the investor receives a “conditional” green card that runs out after the first two years — and can be converted to permanent U.S. residence only if the investor meets various conditions in terms of having actually sunk the money in and created ten new U.S. jobs. A surprising number of investors are denied at this stage, and have to leave their money, and their new U.S. home, behind. For details on this visa, see these articles on “Investment-Based (EB-5) Green Cards.”

About Ilona Bray

The blog is written by Ilona Bray, a Nolo editor and the author of Becoming a U.S. Citizen. Her working background includes both solo immigration practice and working or volunteering as an immigration attorney with nonprofit organizations in Seattle and California.

Among Ilona’s most memorable volunteer experiences were passing out HIV+ literature in Guatemala, researching U.N programs as a legal intern for Amnesty International in London, and representing (pro bono) disabled, low-income people seeking Social Security benefits in Washington, DC.